The COVID-19 vaccine is finally here. 

So, can you force your employees to get it?

In April 2021, the Fair Work Commission decided that it was reasonable and lawful for an employee to be dismissed on the grounds that she failed to get the flu vaccine. 

The decision in Barber v Goodstart Early Learning has set precedent that if employees fail to abide by your business’ mandatory vaccination policy, there may be grounds for fair dismissal. 

So, can the same decision be applied to the COVID-19 vaccine?

The Recent Fair Work Ombudsman ‘Tier’ System.

As of September 2021, some industries have already announced that vaccinations are mandatory. For example, most people working on the quarantine front line have to get the jab.

The Fair Work Ombudsman has release a “tier” system to answering the question where it might be ‘”lawful and reasonable” to mandate vaccination. Depending on which tier your work falls under, you may be requested to get a vaccine to comply with “work health and safety laws”.

  • Tier 1 work: employees interact with high-risk people (eg. border control, hotel quarantine)
  • Tier 2 work: employees interact with vulnerable people (eg. health care or aged care workers)
  • Tier 3 work: employees with public interaction (eg. retail workers at essential stores)
  • Tier 4 work: employees with minimal face-to-face interaction

Tiers 1 and 2 are likely to be required to get a vaccine under public health orders or workplace contracts, whereas Tier 4 workers may not be mandated to get the jab.

This seems to be true. We’ve seen some industries such as aged care workers, airline workers, police which have have required their staff to get vaccinated.

Barber v Goodstart Early Learning [2021] FWC 2156 

The decision in Barber v Goodstart Early Learning is the first of its kind. 

In a groundbreaking decision, the Fair Work Commission decided that an employee can be lawfully dismissed if they fail to get a vaccine that is required for them to successfully fulfill their role. 

The case of Barber v Goodstart Early Learning concerned Ms. Barber, an employee of Goodstart Early Learning (Goodstart). Ms. Barber’s role involved working with infant and toddler children and as such, Goodstart had a policy that it was mandatory for all employees in Ms. Barber’s role to receive the annual flu vaccine. 

Ms Barber applied for an exemption under the mandatory vaccine policy on the basis that she suffered from coeliac disease and had been subjected to an adverse reaction to the flu vaccine in the past. 

Whilst Goodstart’s mandatory vaccine policy had an exemption clause for genuine medical reasons, Goodstart did not believe that Ms. Barber’s reasons amounted to an exemption. Goodstart held this position on the basis that Ms. Barber failed to provide substantial medical evidence that she suffered from any conditions that would genuinely obstruct her from receiving the flu injection. 

Provided that receiving the annual flu injection was a key aspect to Ms. Barber’s role, both Goodstart and the Fair Work Commission saw fit to reasonably and lawfully dismiss Ms. Barber for her failure to abide by the mandatory vaccine policy. 

On What Basis Can I Dismiss My Employee For Not Getting A Vaccine?

You can dismiss an employee for not getting a vaccine only if your business’ mandatory vaccine policy is both lawful and reasonable. 

In the case of Barber v Goodstart Early Learning, Ms. Barber’s dismissal was found to be lawful and reasonable based on the specific circumstances of the case. 

In making its decision, the Fair Work Commission gave particular weight to the following factors: 

  • The flu vaccination had been especially recommended for employees working with children 
  • The flu is particularly harmful for children
  • Flu vaccinations have proven to be effective in decreasing the risk of infection amongst individuals 
  • Ms Barber failed to provide substantial evidence of a valid medical exemption to having the flu vaccine
  • Ms Barber was made aware of Goodstart’s mandatory policy upon commencement of employment and failed to comply.

Provided the decision in Barber v Goodstart Early Learning, it is clear that it is only in very specific circumstances that you can lawfully and reasonably dismiss your employee for failing to get the flu vaccine. 

When determining if your mandatory vaccine policy is lawful and reasonable, you should consider the following: 

  • Does the industry your business falls under require your employees to be vaccinated? 
  • Are your employees required by law to be vaccinated? 
  • Is the vaccination you are mandating widely supported?
  • Can your employee be exempt from your mandatory vaccine policy in any circumstances? 

The very nature of your business and its clients can determine whether or not a mandatory vaccine policy is required in the first place. In the instance that your business is not required by law or recommended to have a mandatory vaccine policy, you may need to consider the specific circumstances in which you may actually need one.

What About The COVID-19 Vaccine? 

At present, the COVID-19 vaccine remains voluntary

The Fair Work Commission acknowledged that the decision in Barber v Goodstart Early Learning was specific to the circumstances in that particular case and industry. 

While the same logic could be applied to a case concerning the COVID-19 vaccine, the Fair Work Commission specifically acknowledged that the circumstances of each case could change the decision significantly.  

The Federal Government does however acknowledge that there may be certain restrictions placed on individuals who do not receive the vaccine in the future. This may include restriction on travel and re-entrance to Australia. 

To mandate the COVID-19 vaccination under your business’s mandatory vaccination policy, there would have to be clear lawful and reasonable grounds to do so. 

As evident within the decision of Barber v Goodstart Early Learning, determination of whether your mandatory vaccine policy is lawful and reasonable will specifically depend on the circumstances of your business, industry, employees and valid exemptions. 

Under the Work Health and Safety Act 2011 (NSW) you have a duty to provide a safe working environment for your employees. Considering the example of Goodstart, it is clear that their mandatory vaccine policy was in the best interests of endorsing a safe work environment for both their employees and their clients, being infant children. 

When considering your business’ health policies, it is vital to remain aware of your duty to provide a safe work environment. However, it is also vital that you respect your employees freedom of choice where there is no harm caused. As a business owner, you must continuously balance the best interests of your employees, clients and work environment. 

Need More Help?

The decision in Barber v Goodstart Early Learning reminds employers that their business’ mandatory vaccine policies must be both lawful and reasonable. 

Establishing lawful and reasonable policy within your business can be tricky. 

If you have any more questions, reach out to our team for a free, no-obligations chat at team@sprintlaw.com.au or 1800 730 617

Editor’s note: This information is correct at the time of September 8, 2021, and could change as vaccines continue to roll out in Australia. 

Related: Can Employees Be Forced To Take A COVID-19 Test? What To Do If Staff Have Flu-Like Symptoms

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